CBE v Children's Guardian [2016] NSWCATAD 29

CBE v Children's Guardian [2016] NSWCATAD 29

The Tribunal accepted Dr Allnutt's expert evidence that the applicant was low risk for sexual recidivism and low risk in working with children, and found that this evidence together with the applicant's evidence and character evidence was not outweighed by evidence suggesting more than low risk. Applying the statutory review task and the real and appreciable risk approach, the evidence did not establish that the applicant presented a real and appreciable risk to the safety of children. The correct and preferable decision was therefore to grant a Working with Children Check Clearance.

Jurisdiction
Australia
Judgment Date
18 February 2016
Procedural Posture
Administrative Review of Refusal to Grant a Working With Children Check Clearance / Review Decision in the Administrative and Equal Opportunity Division
Outcome
Decision set aside; Children's Guardian required to issue the applicant a Working with Children Check Clearance; publication restriction made.
Legal Topics
['refusal of Working With Children Check Clearance' 'risk Assessment for Child Related Work' 'alleged Aggravated Sexual Assault of a Child' 'effect of Jury Acquittal on Risk Assessment' 'publication Restriction']
['administrative Law' 'child Protection' 'working With Children Checks'] ['refusal of Working With Children Check Clearance' 'risk Assessment for Child Related Work' 'alleged Aggravated Sexual Assault of a Child' 'effect of Jury Acquittal on Risk Assessment' 'publication Restriction']

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Procedural Posture

Administrative Review of Refusal to Grant a Working With Children Check Clearance / Review Decision in the Administrative and Equal Opportunity Division

Legal Issues

  1. 1 ["Whether the decision of the Children's Guardian refusing to grant the applicant a Working with Children Check Clearance should be affirmed or set aside." 'Whether the applicant posed a risk to the safety of children within the meaning of the Child Protection (Working with Children) Act 2012.' 'How the Tribunal should treat an earlier charge of aggravated sexual assault where the applicant was found not guilty by a jury.' 'Whether the evidence, including expert risk assessment and character evidence, established a real and appreciable risk to the safety of children.']

Ratio Decidendi

The Tribunal accepted Dr Allnutt's expert evidence that the applicant was low risk for sexual recidivism and low risk in working with children, and found that this evidence together with the applicant's evidence and character evidence was not outweighed by evidence suggesting more than low risk. Applying the statutory review task and the real and appreciable risk approach, the evidence did not establish that the applicant presented a real and appreciable risk to the safety of children. The correct and preferable decision was therefore to grant a Working with Children Check Clearance.

Court Disposition

Decision set aside; Children's Guardian required to issue the applicant a Working with Children Check Clearance; publication restriction made.

Orders

  • ["The decision of the Children's Guardian of 4 May 2015 refusing to grant the applicant a Working with Children Check Clearance is set aside." "The Children's Guardian must issue the applicant with a Working with Children Check Clearance." "Broadcast or publication of the name(s) or other identifying information of...